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Johnson v State of Queensland (Queensland Health)[2021] QIRC 284

Johnson v State of Queensland (Queensland Health)[2021] QIRC 284

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johnson v State of Queensland (Queensland Health) [2021] QIRC 284

PARTIES:

Johnson, Carolyn

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/174

PROCEEDING:

Public Service Appeal – Conversion of Fixed Term Temporary Employment

DELIVERED ON:

17 August 2021

MEMBER:

HEARD AT:

Knight IC

On the papers

ORDERS:

  1. The appeal is allowed.
  2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
  3. Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Ms Carolyn Johnson's request for conversion in accordance with Directive 09/20 Fixed term temporary employment and these reasons.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal under s 194 the Public Service Act 2008 (Qld) – where the appellant's employment was reviewed – whether there was a continuing need to employ her in the same role, or a role that is substantially the same – whether there are genuine operational requirements which preclude conversion – appeal allowed

LEGISLATION AND INSTRUMENTS:

Directive 09/20 Fixed term temporary employment cls 8, 9.1, 9.2

Industrial Relations Act 2016 (Qld) ss 562B, 562C

Public Service Act 2008 (Qld) ss 28, 148, 149A, 149B, 197

CASES:

Benson v State of Queensland (Department of Education) [2021] QIRC 152

Deverge v State of Queensland (Queensland Health) [2021] QIRC 046

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Katae v State of Queensland & Anor [2018] QSC 225

Kelly State of Queensland (Queensland Health) [2021] QIRC 055

Pulikkottil v State of Queensland (Queensland Health) [2021] QIRC 052

Reasons for Decision

  1. [1]
    Ms Carolyn Johnson is employed by the State of Queensland as a HP4 Speech Pathologist through Queensland Health ('the Department'), within the Metro North Hospital and Health Service ('MNHHS').
  2. [2]
    Ms Johnson initially commenced her temporary fixed term employment, for a three‑month period, on a full-time (1.0 FTE) basis on 27 March 2017 at Redcliffe Hospital. Since that time, 0.2 FTE of her employment has been converted to permanent status at Redcliffe Hospital, and 0.8 FTE has continued on a temporary fixed term basis, albeit in several roles. On 4 May 2021, she was appointed as a HP4 fixed term temporary employee on a 0.8 FTE basis at the Prince Charles Hospital ('TPCH'), while she continued to undertake 0.2 FTE at Redcliffe Hospital. 
  3. [3]
    On 5 March 2021, Together Queensland Industrial Union of Employees ('Together Queensland'), on Ms Johnson's behalf, requested that Ms Johnson's employment be reviewed pursuant to s 149B of the Public Service Act 2008 (Qld) ('the PS Act') following her four-year service anniversary on 27 March 2021.[1]
  4. [4]
    A review was subsequently commenced in accordance with s 149B of the PS Act and Directive 09/20 Fixed term temporary employment ('the Directive'). However, a decision was not made within 28 days, such that a decision is deemed to have been made that Ms Johnson's employment will continue according to its current terms ('the decision').[2]
  5. [5]
    Ms Johnson's present 0.8 FTE engagement is due to expire on 16 January 2022.
  6. [6]
    By appeal notice filed 11 May 2021, Ms Johnson appeals the decision under ch 7, pt 1 of the PS Act. Such an appeal proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld).[3] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[4] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[5]
  7. [7]
    Ms Johnson maintains the decision is not fair and reasonable on the basis that there is a continuing need for her to continue in a HP4 role that is substantially the same. Moreover, there have been no genuine operational requirements advanced by the Department that would preclude conversion to a permanent role.
  8. [8]
    In my view, the decision was not fair and reasonable.
  9. [9]
    My reasons follow.

Department's Submissions

  1. [10]
    The Department contends there is not a continuing need to employ Ms Johnson in the same role at TCPH or a role that is substantially the same, such as her former role at Redcliffe Hospital.[6] It submits Ms Johnson's 0.8 FTE engagement at TPCH is for the purpose of backfilling the substantive occupant of the position, who is currently undertaking project work for a specified period.[7] It therefore contends Ms Johnson's engagement is genuinely temporary in nature.[8]
  2. [11]
    With respect to her former 0.8 FTE engagement at Redcliffe Hospital, the Department states the temporary role was comprised of 0.4 FTE resulting from part-time parental leave arrangements, and 0.4 FTE backfilling (albeit over scale) a long-term partial vacancy in a HP3 position, due to a graduated return to work arrangement.[9] However, it maintains that, as of 22 March 2021, the employee on parental leave had returned to work and a HP3 employee was identified who required placement at 0.4 FTE.[10]
  3. [12]
    The Department therefore contends Ms Johnson's employment is consistent with the circumstances set out in s 148(2) of the PS Act.[11] That is, the separate, temporary roles she was undertaking were for the purpose of filling temporary vacancies arising because a person is absent for a known period, or to perform work for a particular project or purpose that has a known end date.
  4. [13]
    Finally, the Department argues there are no budgeted permanent HP4 Speech Pathologist positions within MNHHS that are currently vacant.[12] As such, it maintains it is not appropriate or viable having regard to its genuine operational requirements to convert Ms Johnson to permanency.[13]

Ms Johnson's Submissions

  1. [14]
    Ms Johnson contends there is a continuing need for her to be employed in the roles she is undertaking. Moreover, that considerations as to the continuing nature of the role are only relevant, in so far as they form a "genuine operational requirement" that precludes conversion.[14]
  2. [15]
    She argues the Department was required to consider whether there was a continuing need to employ her in a role that is substantially the same,[15] and maintains the Department has failed to do so, as it has only considered the roles she is presently undertaking.[16] There is limited evidence, she submits, that any process was undertaken to identify and consider other appropriate roles.[17]
  3. [16]
    Ms Johnson resists the Department's position regarding the lack of an available substantive or budgeted vacancy, arguing neither are a requirement under the Directive.[18] Although she accepts the incumbent position holders are absent for a known period and that may make employment on tenure not viable or appropriate, she submits this is but one factor and not an exclusive consideration.[19]
  4. [17]
    While she concedes her initial employment fell within the circumstance in s 148(2) of the PS Act, she submits she has been employed on a frequent and regular basis for the past four years such that employment on tenure is appropriate.[20]
  5. [18]
    Finally, although she concedes a deemed decision is not inherently unfair, Ms Johnson contends the decision-making process is relevant to considering whether the decision ultimately arrived at is fair and reasonable.[21] In this respect, she argues the Department's submissions and correspondence with Together Queensland indicate it has relied on a deemed decision in breach of cl 8.6 of the Directive.[22]

Relevant Principles

  1. [19]
    The PS Act relevantly provides:

149A Decision on review of status

...

  1. (2)
    The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if—
  1. (a)
    the department's chief executive considers—
  1. (i)
    there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and

...

  1. (3)
    If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

149B Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department's chief executive must decide whether to—
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after—
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision—
  1. (a)
    section 149A(2) and (3) applies to the department's chief executive; and
  1. (b)
    the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (6)
    If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating—
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (c)
    for a fixed term temporary employee—how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (7)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.

 ...

  1. (8)
    The commission chief executive must make a directive about making a decision under this section.

(8A)The directive must provide for—

  1. (a)
    the matters a department's chief executive must consider in deciding the hours of work to be offered in converting a person's employment under subsection (3)(b); and
  1. (b)
    the circumstances in which a person may appeal against the decision about the hours of work offered in converting the person's employment.

 ...

  1. (9)
    In this section—

 ...

required period, for making a decision under subsection (3), means—

...

  1. (b)
    ... 28 days after the end of the period mentioned in subsection (4)(a) or (b).
  1. [20]
    Clause 8 of the Directive relevantly provides:

8. Decision on review of status

8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

  • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same
  • the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and
  • the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2 Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

...

8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.

...

Was the Decision Fair and Reasonable?

  1. [21]
    It is not in dispute that Ms Johnson was eligible to be converted having regard to her length of service and the merit criteria.[23] In those circumstances, the Department was required to offer to convert Ms Johnson's temporary status to permanent, where there was a continuing need to employ her in the same role, or a role that is substantially the same.[24] The only exception is where it is not viable or appropriate to do so, having regard to the genuine operational requirements of the Department.[25]

Continuing Need to be Employed in the Same, or Substantially the Same, Role

  1. [22]
    Under s 149A(2)(a)(i) of the PS Act, the Department was required to consider whether there is a continuing need to employ Ms Johnson in the same role, not necessarily the same position. That is, it was required to consider whether there was a continuing need to employ Ms Johnson as a 0.8 FTE HP4 Speech Pathologist at TPCH.  
  2. [23]
    The Department relies on circumstances where Ms Johnson's temporary employment is for the purpose of backfilling another employee, in submitting there is no continuing need to employ Ms Johnson in the same role beyond her current engagement. Although Ms Johnson contends the nature of her engagement is only relevant to the extent it forms a genuine operational requirement, I disagree.
  3. [24]
    Although not conclusive, it is relevant in considering the Department's "continuing need". In this respect I note Ms Johnson has not made submissions or provided evidence as to any circumstances which give rise to a continuing need to employ her, notwithstanding the incumbent employee's return.
  4. [25]
    Instead, in circumstances where the Department has made enquiries to determine whether the incumbent employee is returning, and noting the nature of her absence, I am satisfied there is presently not a continuing need for Ms Johnson to be employed in the same role beyond her current contract date.
  5. [26]
    However, as Ms Johnson correctly highlights, there is a second route to conversion. That is, whether there is a continuing need to employ her in a role that is substantially the same. In this respect I am less satisfied with the decision.
  6. [27]
    Although not raised by the parties, I accept this consideration would be limited to other speech pathology roles given the specific training and accreditation required. However, in my view, there is a paucity of detail within the Department's submissions around what steps were taken to determine whether there is a need for Ms Johnson to be employed in a role which is substantially the same, and not just limited to the temporary roles she is currently undertaking or which she has previously undertaken.
  7. [28]
    In those circumstances, I am not persuaded the Department has adequately complied with the requirements of the Directive. For this reason, I consider the decision was not fair and reasonable.

Other Matters

  1. [29]
    Before concluding, it is necessary to address one other matter raised in submissions. That is, Ms Johnson submits the Department breached the Directive in that it has relied on a deemed decision. Relevantly, cl 8.6 of the Directive states the Department "must not make an intentional decision to rely on a deemed decision".
  2. [30]
    Having regard to the materials before me, I am not satisfied the Department did in fact make an intentional decision to rely on a deemed decision. That is so because on at least 23 April 2021 the Department was making enquiries regarding Ms Johnson's employment with Redcliffe Hospital suggesting it proposed to make a decision. Unfortunately, it appears the Department simply failed to allow itself sufficient time to undertake Ms Johnson's review. On the materials before me, I am not persuaded the Department attempted to deliberately evade or not comply with the PS Act or Directive.

Conclusion

  1. [31]
    For the reasons given above, I consider the decision was not fair and reasonable. It must therefore be set aside.
  2. [32]
    The issue of Ms Johnson's fixed term employment status is to be returned to the decision‑maker with a copy of these reasons, and another review should be undertaken.
  3. [33]
    I order accordingly.

Order

  1. The appeal is allowed.
  2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
  3. Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Ms Carolyn Johnson's request for conversion in accordance with Directive 09/20 Fixed term temporary employment and these reasons.

Footnotes

[1] Directive 09/20 Fixed term temporary employment cl 9.1, 9.2.

[2] Public Service Act 2008 (Qld) s 149B(7), (9)(b); Directive 09/20 Fixed term temporary employment cl 8.5.

[3] Public Service Act 2008 (Qld) s 197.

[4] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[5] Industrial Relations Act 2016 (Qld) s 562B(3).

[6] Department's submissions filed 10 June 2021, [33].

[7] Ibid [26].

[8] Ibid.

[9] Ibid [21].

[10] Ibid [22].

[11] Ibid [34].

[12] Ibid.

[13] Ibid.

[14] Ibid [14] citing Katae v State of Queensland & Anor [2018] QSC 225.

[15] Ms Johnson's submissions filed 30 June 2021, [16]-[17] citing Benson v State of Queensland (Department of Education) [2021] QIRC 152, [125]-[142].

[16] Ms Johnson's submissions filed 30 June 2021, [18]

[17] Ibid [23].

[18] Ibid [19]-[22] citing Pulikkottil v State of Queensland (Queensland Health) [2021] QIRC 052; Deverge v State of Queensland (Queensland Health) [2021] QIRC 046; Kelly State of Queensland (Queensland Health) [2021] QIRC 055.

[19] Ms Johnson's submissions filed 30 June 2021, [27] citing Benson v State of Queensland (Department of Education) [2021] QIRC 152.

[20] Ms Johnson's submissions filed 30 June 2021, [28] citing Public Service Act 2008 (Qld) s 148(3).

[21] Ms Johnson's submissions filed 30 June 2021, [8].

[22] Ibid [9]-[10].

[23] See Public Service Act 2008 (Qld) s 28.

[24] Public Service Act 2008 (Qld) s 149A(2); Directive 09/20 Fixed term temporary employment cl 8.1

[25] Public Service Act 2008 (Qld) s 149A(3); Directive 09/20 Fixed term temporary employment cl 8.2.

Close

Editorial Notes

  • Published Case Name:

    Johnson v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Johnson v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 284

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    17 Aug 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Benson v State of Queensland (Department of Education) [2021] QIRC 152
3 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Cite 3 - [2021] QIRC 152
Deverge v State of Queensland [2021] QIRC 46
2 citations
Jump To
Cite 1 - [2021] QIRC 46
Cite 2 - [2021] QIRC 46
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Kelly v State of Queensland (Queensland Health) [2021] QIRC 55
2 citations
Jump To
Cite 1 - [2021] QIRC 55
Cite 2 - [2021] QIRC 55
Pulikkottil v State of Queensland (Queensland Health) [2021] QIRC 52
2 citations
Jump To
Cite 1 - [2021] QIRC 52
Cite 2 - [2021] QIRC 52

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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